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Launch facilities Down Incident in October 23, 2010::

Jules Zacher

Launch Facilities Down Incident of October 23, 2010

This case study in using litigation to achieve a nuclear weapons free world was presented by its author Jules Zacher at the Ethics and Secrecy and the Rule of Law Seminar at the University of Pennsylvania Law School on May 18, 2012. To download a pdf file of the presentation, click here.

I. Introduction

The subject of this paper is the secrecy surrounding the Launch Facilities Down incident of October 23, 2010. The theme of the paper is how using litigation can breach the wall of secrecy surrounding this incident. The reason this paper is being written is to motivate people, particularly those in the legal community, to take charge of their destiny by ridding the world of nuclear weapons and the unparalleled suffering they can inflict on mankind.

II. Background to Launch Facilities Down

On October 23, 2010, 50 ICBM’s with nuclear warheads were not able to communicate with their human controllers for close to an hour. This meant effectively that the President lost command and control of warheads containing enough destructive power to kill 20 million people. The Air Force calls this phenomenon Launch Facilities Down.
Under current US policy, these missiles are kept on launch-ready alert status which places an emphasis on ensuring the ICBM’s can be launched under appropriate Presidential authority versus an accidental or unauthorized launch. This policy presumes that the communication between the President and the persons controlling the missiles is operating properly. Unfortunately when the Launch Facilities Down incident occurred, the missileers lost their ability to cancel any non-authorized launch orders. Once the ICBM’s are launched there is no way to retrieve them.
Unfortunately again, countries such as Russia, China and North Korea use cyber warfare as part of their national policy, resulting in thousands of hacking attempts against US military computers every day. While one hopes that the firewall protecting the command and control system for the United States’ nuclear weapons is impenetrable, a 1990’s investigation of the Navy’s nuclear weapons launching system on its submarines led to a complete overhaul of the system because of the potential for someone hacking into the system.
It is well known that the President has with him at all times the “football” that contains the launch codes for our nuclear arsenal. What is not well known is an incident that occurred in 1993 when unauthorized personnel aboard the airborne command post for launching these devices had access to the unlocked code book. It is not too hard to imagine these same unauthorized personnel disseminating this information to our enemies.i

III. Secrecy Surrounding Nuclear Weapons

The secrecy surrounding these weapons was present from their inception. The first nuclear weapons developed during World War II were created in the utmost secrecy. Vice President Truman did not know anything about them until the death of President Roosevelt. Even today, President Obama is currently revising our SIOP (the operational plan for how these weapons would be used) with hardly any input from the legislative branch of our government, let alone any citizen who might be affected by their usage.
The very idea that one person, namely the President, has the power to obliterate the human race has fundamentally changed the average citizens relationship to his government, making that citizen much more willing to yield his or her destiny to the President. This anti-democratic process has made it very easy for national security managers to impose a wall of secrecy around anything nuclear.
America's penchant for treating nuclear weapons with the highest degree of secrecy is personified by the "born secret" doctrine. Under this doctrine as indicated in the Atomic Energy Act, any information about nuclear weapons and nuclear energy is considered "Restricted Data"ii from the moment it was created until it is declassified. This is completely different from how any other document is treated, i.e. other documents are subject to a review to determine whether it should be classified and at what level. There is nothing like this anywhere else in American law.
Fortunately, the FOIA request which is the subject of this analysis dealt with the Command and Control system for the United States' ICBM's and not the atomic weaponsiii atop them.

IV. Nuclear Weapons Are Revolutionary

Because nuclear weapons are so revolutionary in character in that they can not only obliterate a nation but the entire human race, they require a whole new mindset in dealing with national security issues and secrecy. Rather than making things more opaque for the average citizen for informed 3 decision making leading to less destructive policies, the government should be opening up the windows of information for informed debate.

V. Using the Courts to Unveil Secrecy

An underlying precept of this conference is there are actions being taken by our government in secret which may affect its citizens adversely. This paper will discuss how citizens can do things to its government to get behind the wall of secrecy surrounding nuclear weapons.
One way to peel back this wall of secrecy is to use the Courts. The major litigatory tool in this regard is the Freedom of Information Act (FOIA)iv, which was enacted in 1966 and amended numerous times since then. As stated in one seminal case, “disclosure, not secrecy, is the dominant objective of the Act”v.
President Obama's first order upon assuming the Presidency dealt with the classification of national security information. He stated "I expect that the order will produce measurable progress towards greater openness and transparency in the Government's classification and declassification programs while protecting the Government's legitimate interests..."vi. Unfortunately, the Obama Administration has not lived up to its promise to make its various agencies, including the Department of Defense, more open and transparent.

VI. FOIA Request for LFD Documents

A FOIA request was sent to a department of the Air Force requesting documents dealing with the Launch Facilities Down incident. The department has indicated on numerous occasions that it was sending documents in response to the request but none have been forthcoming. FOIA provides for the initiation of a complaint against the non-compliant department.

VII. Legal Background to a Lawsuit Against the Air Force for Release of the LFD Documents

A recent case analyzing a request under FOIA for classified information provides some insight as to how a case against the Air Force might proceed vii. As stated in the Center for International Environmental
Law opinion, the agency denying disclosure has the burden of proofviii. Further, an agency is entitled to Summary Judgment if no material facts exist and the documents are exempt from disclosureix.
The major exemption under FOIA regarding the release of documents dealing with nuclear weapons is for national security. Exemption 1 states as follows;
(b) This section does not apply to matters that are—
(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and
(B) are in fact properly classified pursuant to such Executive order.x

Thus the government is allowed “to deny public disclosure of matters properly classified pursuant to an executive order in the interest of national defense”xi. The Courts have enforced Exemption1 because "Congress has thus affected a balance between the needs of the public for access to documents prepared by a federal agency and the necessity of nondisclosure or secrecyxii".
The Executive Order which would be used for an Exemption 1 analysis is Executive Order 13526. The Order was issued December 29, 2009 by President Obama and is one of many previous Presidential Orders detailing how classified information should be handled. The Order was an attempt to have a more transparent and responsive government. As stated in the preamble to the Order;
Our democratic principles require that the American people be informed of the activities of their Government. Also, our Nation’s progress depends on the free flow of information both within the Government and to the American people.xiii
As stated earlier in this paper, the Obama Administration has not lived up to this worthy goal. As an example, the case cited earlier in this paper, Center for International Environmental Law, may be appealed to the DC Circuit Court.

Executive Order 13526 establishes three levels of classification as follows;

(1) 'Top secret' shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.
(2) 'Secret' shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.
(3) ‘Confidential’ shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.xiv

Executive Order 13526 also establishes various classification categories under Section 1.4 which states in pertinent part;

Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security…and it pertains to one or more of the following:
(a)…weapons systems
(g) vulnerabilities or capabilities of systems, installations…relating to the national security; or
(h) the…use of weapons of mass destructionxv

It is most likely that the Air Force will assert that documents relative to the Launch Facilities Down incident cannot be released under Exemption 1 because they are Top Secret and relate to weapons systems or capabilities associated with these systems. The Air Force may also decline to release these documents because they deal with the usage of weapons of mass destruction.

VIII. Legal Analysis of a Lawsuit Against the Air Force for Release of the LFD Documents

An agency such as the Air Force claiming Exemption 1must describe and explain with "as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection" lxvi. The Court may order disclosure of the documents being claimed exempt under Exemption 1 if the "agency fails to meet its burden to justify application of a FOIA exemption…xvii"
The usual manner in which an agency such as the Air Force requests an exemption is through an affidavit attached to a Motion for Summary Judgment. The affidavit should:
(1) identify the document, by type and location in the body of documents requested; (2) note that Exemption 1 is claimed; (3) describe the document withheld or any redacted portion thereof, disclosing as much information as possible without thwarting the exemption's purpose; (4) explain how this material falls within one or more of the categories of classified information authorized by the governing executive order; and (5) explain how disclosure of the material in question would cause the requisite degree of harm to the national securityxviii.

Although Courts review Exemption 1 claims de novoxix, Courts will give affidavits “expressing national security concerns substantial weight and take account of the fact that harm to national security cannot be predicted with precision but rather will always be somewhat speculative in nature"xx. The reason for not disclosing the document will be upheld if the "justification ...appears 'logical' or 'plausible'”. xxi Nevertheless, affidavits that contain categorical or conclusory statements, or which are contradicted by other evidence in the record, will not pass muster.”xxii The affidavit accompanying the Air Force’s Motion for Summary Judgment Motion will therefore be of critical importance in obtaining the requested documents.

Perhaps the most intriguing aspect of the Center for International Environmental Law court's analysis is the fifth requirement of the affidavit to be produced by the agency claiming Exemption 1, i.e. “(5) explain how disclosure of the material in question would cause the requisite degree of harm to the national security”xxiii). Presumably any defect in the Command and Control system for the missiles which caused the outage has been fixed by now. The government therefore will be hard pressed at this time to explain how disclosure would "...cause the requisite degree of harm to the national security.", because Top Secret classification requires “grave damage” xxivto the national security of the United States. The element of temporality certainly comes into play in ascertaining whether “grave danger” exists to the United States at this time when the release would be made.
Another means of asserting that Exemption 1 may not apply is the requirement under FOIA that Exemption 1 may not be claimed in order to “(2) prevent embarrassment to a(n) …agency”xxv. The Launch Facilities Down incident of 2010 is not the first time that the Air force has suffered such a reversal. In 1998 a similar incident occurred at two other missile basesxxvi.
FOIA also allows for documents or portions of documents to be produced which are segregable even when Exemption 1 is claimed by the agencyxxvii. This means that the Air Force cannot claim that all the documents dealing with Launch Facilities Down cannot be released if some of the documents should be released.
At times the Court will conduct a in camera inspection even after affidavits have been submitted by the government, particularly where there is " a strong public interest in disclosure"xxviii. The Allen court went on to state ;
“Where the agency fails to meet that burden, a not uncommon event, the court may employ a host of procedures that will provide it with sufficient information to make its de novo determination, including in camera inspection, further agency affidavits, and discovery by the plaintiff”.xxix

Discovery, e.g. depositions, interrogatories, however, is frowned on in FOIA casesxxx. Some Courts, nevertheless, have allowed depositions of the classifier even in Exemption 1casesxxxi Courts, unfortunately, allow the agency to file supplemental affidavits to make up for any evidentiary issues raised by the plaintiff/requestor. Under these circumstances, the plaintiff/requestor usually files a Vaughn motion which forces the agency to file a description of the documents being withheld. This levels the playing field to some degree.

VIII. Conclusion

American citizens, particularly lawyers, have a valuable tool to acquire information about a scourge that threatens our very existence. Perhaps the release of documents from the LFD FOIA request may result in information showing just how close we came to launching these weapons. Perhaps this may serve as a wakeup call to the American public, particularly in a campaign season. Using this tool, FOIA, contravenes the assumption that we are all helpless before such a monster. Now all we need to do is use the tool.

i “Could Terrorists Launch America's Nuclear Missiles?”, Bruce Blair, “Time Magazine”, November 11, 2010
http://www.time.com/time/nation/article/0,8599,2030685,00.html#ixzz1s8oU0f24 <http://www.time.com/time/nation/article/0,8599,2030685,00.html
ii (y) The term "Restricted Data" means all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 142 [42 USCS § 2162].
42 USCS § 2014 (y)
iii d) The term "atomic weapon" means any device utilizing atomic energy, exclusive of the means for transporting or propelling the device (where such means is a separable and divisible part of the device), the principal purpose of which is for use as, or for development of, a weapon, a weapon prototype, or a weapon test device.
42 USCS § 2014 (d)
iv 5 U.S.C. Section 552
v Department of Air Force vs Rose, 425 U.S. 352
vi Memorandum of December 29, 2009, "Implementation of the Executive Order, 'Classified National Security Information", The White House
vii Center for International Environmental Law vs. Office of the United States Trade Representative, et al, Unreported Opinion, February 29, 2012, Civil Action No. 01-98 (RWR), United States District Court for the District of Columbia
viii 5 USC 552(a)(4)(B), see also Akin, Gump, Strauss, Hauer and Feld LLP v U. S. Department of Justice 503 FSupp 2d 373, 378 (D.D.C. 2007) cited in Center for International Environmental Law p. 7
ix Students Against Genocide v Department of State, 257 F3d 828 at p. 833 cited in Center for International Environmental Law p. 7
x 5 USC 552(b)(1)
xi Hudson River Sloop Clearwater Inc et al Department of the Navy et al, 891 F.2d 414 at p. 420
xii Weinberger, Secretary of Defense, et al. vs Catholic Action of Hawaii/Peace Education Project et al., 454 US 139 at p,143
xiii Executive Order 13526 of December 29, 2009, Federal register, Vol. 25, No. 2, p. 707, January 3, 2010 10

xiv Executive Order 13526 of December 29, 2009, Federal register, Vol. 25, No. 2, p. 707-708, January 3, 2010
xv Executive Order 13526 of December 29, 2009, Federal register, Vol. 25, No. 2, p. 709, January 3, 2010
xvi Oglesby v Army 79 F3d 1172 at p. 1176 cited in Center for International Environmental Law p. 8
xvii Coastal States Gas Corporation v Department of Energy 617 F2d 854 at p. 870 cited in Center for International Environmental Law p. 8
xviii King v Department of Justice 830 F2d 210 at p. 224 cited in Center for International Environmental Law p. 8
xix Judicial Watch Inc v Department of Defense et al, 2012 U. S. Lexis 58537, U. S. District Court for the District of Columbia, Civil Action No. 11-890 (JEB)
xx Wolf v CIA 473 F 3d 370 p. 374 cited in Center for International Environmental Law p. 8
xxi ACLU v Department of Defense 628 F3d 612 at p. 619 quoting Larson v Department of State 565 f3d 857 p. 862 cited in Center for International Environmental Law p. 9
xxii PHE, Inc. v Department of Justice 983 F2d 248, p. 250 and Halperin v CIA 629 F2d 144 at p. 148 cited in Center for International Environmental Law p. 9
xxiii King v Department of Justice 830 F2d 210 at p. 224 cited in Center for International Environmental Law p. 8
xxiv Executive Order 13526 of December 29, 2009, Federal register, Vol. 25, No. 2, p. 707, January 3, 2010
xxv Executive Order 13526 of December 29, 2009, Federal register, Vol. 25, No. 2, p. 710, January 3, 2010
xxvi “US Lost Command of One-Ninth of Intercontinental Ballistic Missile Arsenal Last Saturday”, Jesus Diaz, October 26, 2010, http://gizmodo.com/5674028/one+ninth-of-us-nuclear-intercontinental-missiles-down-last-saturday
xxvii Church of Scientology v Department of Army 611 F2d 738 743-744 and 5 U.S.C. Section 552(b)
xxviii Allen v CIA, 636 F2d 1287, 1298-1300
xxix Allen v CIA, 636 F2d 1287, 1297
xxx Judicial Watch Inc v United States Department of Justice, 185 F. Supp. 2d 54, 64
xxxi Frederick P. Schaffer v Henry A. Kissinger, 505 F2d 389, 390

 

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